Will survivors of rape be given the right to abortion?

Will survivors of rape be given the right to abortion?

May 11, 2016

By Nadine Nimri
Translated by Orion Wilcox

This article first appeared on 7iber in Arabic.

“I felt like there was something weighing down on my chest, preventing me from breathing. The feeling stayed with me until I gave birth.” This is how Maram, who became pregnant at the age of 14 after she was raped by the man who guarded her apartment building, describes how she felt during pregnancy.

“But when I woke up after delivery, I felt like the weight had gotten up and left,” says Maram.

Fearing her father’s, and her society’s, reaction, Maram didn’t tell her family or her relatives about the rape. Her sense of guilt and shame—in addition to her rapist’s threats—only reinforced the decision to remain silent.

“My pregnancy began to show in the fifth month. I didn’t know I was pregnant, but when my body started to change my step mother took me to the doctor,” says Maram. “All of a sudden his facial expression totally changed and he says ‘you’re pregnant,’” she says referring to the physician.

The doctor immediately called the police. After an interrogation at the Department of Family Protection, Maram was sent to a shelter for abused girls.

“I wanted an abortion,” says Maram. “Every night I would have nightmares. I felt like there was a distorted thing, or a monster, inside me that was paralyzing me, preventing me from living my life.”

Maram gave birth by C-section under full anesthesia. “After the delivery, the nurse asked me if I wanted to see the baby,” says Maram, “I refused.”

“They told me I had given birth to a girl, but I didn’t want to see her,” she adds.

The following day, Maram met with an employee at the Ministry of Social Development to put her daughter up for adoption. Despite the employee’s request that she take some time to think about the decision, Maram insisted on waiving her custody of the child, who was taken to an orphanage.

“My rapist tried to get out of prison by marrying me, but I refused,” says Maram. “My aunt also offered to adopt the child but I refused,” she adds, “I didn’t want to see her; she’s something I want to forget.”

Today, Maram has no desire to see a picture of her daughter, now two years old, or to know anything about her.  Usually, children like Maram’s are placed in foster care programs.

In Jordanian law, abortion is illegal in all cases except those in which the pregnancy endangers the life of the mother. Women’s rights organizations are demanding that abortion be permitted in cases of rape and incest, given the exceptional nature of these cases, and the cruelty that they impose on the mother. But these demands clash with another movement that opposes abortion, saying it results in “the ending of an innocent child’s life, who has no fault in how he or she came into this world.”

No emergency contraception

The absence of a Ministry of Health-approved guide to preventing pregnancy after rape is the biggest issue facing providers of health care to victims of sexual violence, says Dr. Manal at-Tahtamuni, a gynecologist and activist for the right of rape victims to contraception.

Without such an approved guide, healthcare providers cannot consistently prevent pregnancy in cases of rape. Furthermore, in Jordan, reproductive health services are accessible only to married women.

“From a medical perspective, the goal is prevention and not intervention,” says at-Tahtamuni. “In cases of sexual assault, what is needed is the prevention of pregnancy and not abortion after we’ve waited for pregnancy to occur,” she adds, explaining that the psychological, social and medical effects of sexual assault are compounded by pregnancy.

Based on this principle, at-Tahtamuni argues for the provision of emergency contraception to prevent the need for abortion. “There are forms of post-intercourse contraception known as emergency contraception,” says at-Tahtamuni. “Worldwide, this treatment is provided, alongside other medicines that prevent the contraction of sexually transmitted diseases (such as AIDs), to rape victims—together these medications make up a post-rape prevention kit,” says at-Tahtamuni.

The World Health Organization (WHO) recommends the medication Levonorgestrel as a form of emergency contraception to prevent pregnancy within three days of intercourse. Although Levonorgestrel is considered the most effective emergency contraceptive, the medication is not approved by the Jordanian Drug and Food Administration (JFDA) and therefore is not available in the country.

“No pharmaceutical companies have attempted to register Levonorgestrel in Jordan,” says JFDA director Dr. Hayel Obeidat, adding that “there is global controversy over the use of these pills from an ethical, religious and legal perspective.”

According to Obeidat, any medication that enters the Kingdom must register with the JFDA. The administration’s legal commission assesses the medicine’s specifications and the nation’s needs, says Obeidat, “while taking other caveats into consideration.”

In previous years, both Jordanian civil society, and particularly women’s rights organizations, and United Nations institutions have demanded that post-rape prevention kits be provided to survivors of sexual assault—even in cases where the victim does not submit an official complaint; they argue that doctors be allowed to prescribe these pills like any other medicine. These demands have run up against opposition in the law community and the police, who argue that sexual assault crimes must be reported.

At-Tahtamuni is surprised by the JFDA’s decision not to allow Levonorgestrel into the country and the government’s refusal to approve post-rape prevention kits. “This medicine is no different than any other form of contraception, it is not abortion and all of the arguments against its use are unconvincing,” says at-Tahtamuni.

Dr. Qais al-Qussous, director of the National Center for Forensic Medicine, agrees with at-Tahtamuni that emergency contraception should not be considered a form of abortion. Levonorgestrel changes the environment inside the womb, preventing sperm from fertilizing the mother’s eggs and preventing fertilized eggs from implanting themselves in the uterine wall, says al-Qussous.

In the past, doctors in Jordan provided post-rape prevention kits to survivors of sexual assault, says al-Qussous, explaining that after the establishment of the Department of Family Protection the kits were approved for several years. However, this approval was later withdrawn, and this is the problem facing physicians today—in addition to the fact that even if a physician wanted to provide the medication of his own accord, the medicine is not available in Jordanian pharmacies.

“The lack of an approved process for treating survivors of sexual assault is the result of the slow bureaucracy of the Ministry of Health,” says Dr. Isra al-Tawalbeh, a specialist in forensic medicine at the Department of Family Protection Clinics. “This is in addition, to some people’s false beliefs about the medicines,” she adds.

“Personally, when I deal with survivors of sexual assault and there is a chance of pregnancy, I transfer them to a gynecologist’s clinic where they can obtain locally available emergency contraceptives,” says al-Tawalbeh. “But this is a personal decision,” she adds.

“Currently, there are initiatives from UN institutions like the UN Population Fund and UNICEF to train those who work with victims of sexual violence to use post-rape prevention kits that include emergency contraception and medications for preventing the spread of STDs,” says at-Tawalbeh. “When will these initiatives be implemented? That depends on the speed of decision makers,” she says.

But al-Qussous points to an important issue regarding pregnancies resulting from rape or incest. These kits only prevent pregnancy if they are used within three days of the assault or intercourse,” says al-Qussous. “Quite often, the assault is not reported until after the signs of pregnancy have begun to show. In these cases, the legal options available are highly limited, especially due to Jordanian law that completely forbids abortion,” he adds.

Laws governing abortion

Three laws govern the issue of abortion in Jordan. The first is the Penal Code, under which both the woman who has the abortion and the individual who performs the abortion can be punished. Secondly, there is the Public Health Act, which permits abortion in cases where the mother’s life or health is in danger. Finally, there is the Medical Constitution that regulates abortion.

Article 321:

Any woman who aborts her child using any means, or who permits another individual to abort her child using any means, will face imprisonment from six months to three years.

Article 322:

Any person who performs an abortion on a woman with her consent, whatever the means used, will face imprisonment from six months to three years. If the abortion, or any part of the operation, leads to the death of the woman, the operator will face a punishment of hard labor for a period of no less than five years.

Article 324:

A woman who aborts her child in order to preserve her honor, can benefit from attenuating circumstances.

Article 325:

If the perpetrator of any of the crimes covered by this section is a physician, surgeon, pharmacist or midwife, the period of imprisonment will be increased by one third.

Article 12:

No physician is permitted to prescribe a woman medication for the purpose of aborting a child, nor may any physician conduct an abortion on a pregnant woman, except in those cases where the pregnancy endangers the woman’s health or her life.

  • No physician is permitted to conduct a voluntary abortion on a woman by any means, unless the continuation of the pregnancy endangers the woman’s life. In such cases the following conditions apply:>
  • The abortion must be conducted by a specialized physician with the approval of a secondary specialized physician and in a licensed hospital.
  • A report clarifying the urgent need for the abortion must be submitted prior to the operations
  • At least four copies of this report must be printed and signed by the physicians, the patient and her husband or guardian. One copy is to be kept in the files of the patient.
  • If the pregnant woman refuses to have the operation after the physician has explained the danger, then he/she must respect the woman’s decision.

Lawmakers are currently discussing amendments to the Jordanian Public Health Act. Despite the demands of women’s rights organizations to permit abortion in cases of incest and rape, sources in the Ministry of Health say that the amendments will not include the issue of abortion. Moreover, the Ministry’s spokesman, Hatim al-Azrai, says that the words “the health and life of the mother” refer to physical health and do not pertain to psychological health or to the danger of a woman being targeted by so-called “honor crimes.”

In 2014, the Jordanian Department of Ifta (Islamic rulings) issued a ruling on pregnancy resulting from rape that neither clearly allowed for abortion or forbade it:

Given that pregnancy that results from the crime of rape will exacerbate the harm of the initial crime and cause disunion and enmity in the community, the Council of Ifta sees that the victim should meet with the Department of Ifta to review the circumstances of the case. The department will review the conditions of the pregnancy and pertinent Islamic law in order to issue a ruling for each individual case that achieves what is in the best interest of the community and averts further harm.

Demands for abortion in cases of rape
In the face of this official trepidation, the women’s rights activist, lawyer, and legal advisor to the Jordanian Women’s Union, Hala Ahed, says that the “legalization of abortion in cases of rape and incest is an absolute necessity,” adding that other proposed alternatives, such as emergency contraceptives are not effective in the Jordanian context.  

“Realistically, there is no sexual awareness in Jordan nor are reproductive services available to young people,” says Ahed. “If you add to that the fact that, in most cases, victims of rape and incest are not able to report the incident within three days, then it becomes clear that the only available option is the aborting of the pregnancy,” she says.

Ahed points out the destructive psychological effects of pregnancy on victims, saying that “not legalizing abortion exacerbates this tragedy and exposes the victim to additional abuse.”

Ala* is a victim of sexual assault, incest, illegal abortion and human trafficking.

When Ala reached puberty, her alcoholic father began sexually exploiting her for an extended period of time. At the age of 12, Ala went to live in an orphanage for abused girls, after her father was arrested under charges of sexual molestation. At first, Ala was adopted by her uncle, but her father was shortly released from prison, due to a lack of evidence, at which point he continued to molest his daughter until she became pregnant.

Ala says that she didn’t report her father because she knew that would result in her returning to the orphanage—a place she considered a prison. Turning to one of her friends from the orphanage for help, Ala obtained some illegal pills and was able to abort her pregnancy in the sixth week.

“The price of the abortion was my agreement to marry my friend’s relative,” says Ala. “I didn’t object because I saw it as an opportunity to escape from my father. It was only later that I discovered that the marriage was only a cover for them to force me to work as a prostitute,” she adds.

Ahed, the lawyer, sees Ala’s case as an example of the dangerous repercussions of sexual assault victims seeking out illegal abortions. Girls in this situation, such as Ala, face both dangerous health risks in addition to the possibility of financial exploitation from doctors providing below-board abortions, says Ahed.

The National Commission on Women’s Issues has proposed that the Ministry of Justice amend the current penal code to permit abortions in the first weeks of pregnancy in cases of rape and incest. But this proposal was not incorporated into the first draft of the new law.

Explaining its proposal, the commission argued that “survivors of incest and rape resort to unsafe measures to rid themselves of their pregnancy and these decisions have dangerous, and potentially fatal, consequences. This is in addition to the social stigma faced by a woman who gives birth to a child who is also her brother or some other degree of relation.”

The Secretary General of the commission, Salma Nims, confirms this position regarding abortion: “Permitting abortion in these cases protects the woman’s right to mental and physical health, not to mention that it avoids social problems for both the mother and the child.”

Regarding the question of whether a judicial decision should be required for a woman to receive an abortion in cases of rape and incest, Nims clarifies the commission’s stance: “Obtaining a judicial decision usually requires months and is therefore not a logical option in these cases.”

What life for a child born from rape?

The forensic physician, Dr. Hani Jahshan, sees the legalization of abortion as “a violation of the fetus’s right to life, through the use of the law.” In his opinion, the moral and legal solution to this problem is to prevent pregnancy before it happens—either through raising awareness among women and girls or by developing and using current emergency contraception techniques.

For her part, at-Tahtamuni, the gynecologist, argues that the legalization of abortion cannot reduce the operation’s inherent risks. Even when abortions are conducted in a hospital, under proper medical supervision “you cannot prevent many of the extremely risky aspects of the operation, especially if it is conducted late term,” says at-Tahtamuni, adding that there is the issue of violating the child’s right to life.

The issue of abortion is one of the most controversial topics both in Jordan and in the world “as a result of the difficulty of balancing between the desires of the woman who carries the child in her womb and the fetus’s right to life,” says at-Tahtamuni. “This dilemma requires that we achieve the best interests of both parties, although the pendulum should swing towards protecting the needs of the weaker party.”

Meanwhile, Ahed, the women’s rights lawyer, argues that the issue not only involves a woman’s right to end an unwanted pregnancy but also the type of life that a child of rape or incest will live “in a culture, and under legislation, that discriminates against children born out of wedlock.”

But Eva Abu Halawa, the Executive Director of the human rights law firm Mizan, argues against using the challenges faced by children of rape to justify abortion. “The right thing to do is to amend our current discriminatory laws and take the necessary legal steps to protect the rights of children and ensure them a dignified life,” says Abu Halawa.

In this vein, Abu Halawa demands that the biological father be held responsible for children born outside of wedlock, including in cases of rape, and that these children be granted their full rights including financial support and inheritance. Moreover, Abu Halawa calls for the expanded use of DNA paternity testing.

Even in cases where it is not possible for a child to live with his or her biological family, there are ways to ensure a dignified life, says Abu Halawa.

“What is necessary is to strengthen foster family programs and ensure improved protections for children.”

The names have been changed to protect the privacy of the individuals involved considering the sensitivity of the issue

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